Public Entity Litigation

If you suffered injuries after a slip and fall because of an unsafe condition on public property, can you sue the governmental entity which owns and/or maintains it? The answer is maybe, and your ability to collect may be capped by statutes designed to afford an extra layer of protection against civil lawsuits for governmental agencies. Thanks to these laws, liability is apportioned differently in cases involving public entities such as the city which owns a park or the maintenance department responsible for landscaping it-and a case that may seem like a strong one against individuals or private organizations may suddenly be stymied by statutes designed to keep litigation against the government at a minimum. It can be tricky, particularly for those who elect to represent themselves, to successfully prosecute a case even when liability against a public entity appears to be strong. In fact, the loss of a case can occur even before the lawsuit has been filed.

Because public entities are statutorily required to be put on notice of any potential litigation that may arise due to a claim against them, the unwary litigant could kill off his or her lawsuit the same day it is filed if he or she failed to first put all public entities on notice prior to filing the suit. The notice must follow a particular format and typically must contain certain statements to be considered valid in the eyes of the court. While some public entities, such as the City of Los Angeles, now have their own claim forms, these can also be problematic when they require additional information from the claimant for the city to accept it. Beyond that, there have even been some recent cases in which information in the notice can be used as evidence later in the lawsuit. This means even if you do correctly provide notice of the lawsuit as required by the code, you may find the court denying your claim for medical damages later-even if you didn't experience symptoms until after the notice-because you failed to notice medical damages in the notice. Since the notice must also be filed in a timely manner-typically less than a year before the date of the injury or damage-the notice itself can be a minefield for the unwary litigant who fails to be mindful of the repercussions of this early aspect of public entity law.

At the same time, public entities enjoy a host of immunities. One source notes that "A plaintiff suing an individual defendant must generally overcome the defense of qualified immunity" (Kritchevsky 36). A qualified immunity, however, may not be applicable in cases that don't involve an individual, or group of individuals, who are under the employ of a public entity. That said, some public entities enjoy sovereign immunity. An example of this is when an injury occurs on a Native American casino. A lawsuit against such an entity is often barred outright because the entity which owns the casino enjoys sovereign immunity on Native American land; this means they are not subject to the laws, civil or otherwise, that even public entities must adhere to in most US states. In the interests of public relations, such sovereign entities may offer a settlement to plaintiffs if they feel the case has some merit, but they are also not obligated to do so. Similarly, some public entities will have sovereign immunity that protects them from certain types of allegations or damages resulting from them. At the same time, there may be other, related public entities such as local municipalities, transit authorities, or departments-which may have exposure instead. For example, when suing a municipality-such as a city-the plaintiff may need to show that the injury occurred because of a municipal policy or custom. At that point, a plaintiff might be able to pursue a suit for damages, but such defendants might still be immune to punitive (punishing) damages. This typically means that a defendant has done something deemed so reprehensible that extra damages have been permitted in an effort to send a message to others. While the inability to collect punitive damages generally from a public entity may limit the amount recovered, a plaintiff may still collect other damages such as pain and suffering, lost income, or medical damages.

Assuming one gets beyond all that, there can be considerable difficulty sustaining a lawsuit against many public entities because of their statutory immunities. The general theory of providing public entities with this special protection is to thwart a chilling effect on the "exercise of official discretion," to prevent a "fear of liability from inhibiting persons from working in the public sector," and "to encourage 'principled and fearless' decision-making" in public officials (Kritchevsky 37). This has an interesting tie-in to those who believe doctors should enjoy similar immunity from medical malpractice lawsuits because of the purported chilling effect such litigation has on a doctor's ability to treat a patient, but there is little evidence to suggest this is the case. In any event, the immunities provided to public entities can have dire consequences for suits which fail to articulate claims correctly against a particular entity. One common case against public entities involves lawsuits alleging a defective public property or unsafe condition of a location.

Injuries caused because of a dangerous condition of public property are legally distinct from those in which a private party owns, controls, and/or maintains the property. In California, a claimant must show that the alleged "dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventive measures" (Gov.Code, § 835, subd. (b);[1] Baldwin v. State of California (1972) 6 Cal.3d 424, 427, 99 Cal.Rptr. 145, 491 P.2d 1121 (Baldwin)). For example, in a case involving a husband and wife struck by a large branch which fell from a tree, the public entity which owned the park and maintained the landscaping had some exposure in a lawsuit filed by the couple alleging damages after injuries they suffered were shown to have resulted from the impact. As a result of this case, the couple was eventually able to obtain a favorable settlement from defendant public entities because of how they negligently designed and maintained the landscaping at the park in which the plaintiffs were hurt. Because the public entity knew or should have known that the landscaping of the trees in the park was potentially dangerous to people walking on the park's hardscaped pathways, the public entity elected to settle the matter rather than risk trial because of their potential exposure under the wording of Government Code section 835.

In a recent example from the higher courts on this topic, it was found that a county transit authority could be liable for damages because of where the authority placed a bus stop. In that case, the court determined that "the location of a bus stop may constitute a 'dangerous condition' of public property, within the meaning of Government Code sections 830 and 835." In this case, the appellate court sided with the plaintiff and against the transit authority in determining that because "bus patrons must cross a busy thoroughfare at an uncontrolled intersection," the plaintiff could articulate a cause of action against the public entity assuming "all other elements of an action under section 835 are proven" (Bonanno v. CCCTA). Because the public entity knew, or had constructive knowledge, of the danger of placing a bus stop in an area where pedestrians had to risk their lives crossing a busy and dangerous intersection, the public entity was found to be potentially liable after appeal for the damages sustained by a plaintiff who was injured doing just that. Because the plaintiff was able to prove that the entity had notice of the condition under section 835 by virtue of how visibly dangerous the route was for pedestrians, the law states that the public entity should have either fixed the defect or, if the public entity could not afford that, to provide ample notice of the defect such that a reasonable person would be able to avoid it. This differs from defective condition cases in which the public entity did not have ample time after being given notice of the condition to deal with it. An example of this would be when an earthquake causes a bridge to collapse; in this case, the public entity responsible for the bridge probably would not be responsible for damages caused by the collapse unless, of course, the bridge was not up to safety standards and the public entity knew or should have known, that it was not. In the case of the bus stop, however, the city knew well in advance about the potential for injury, so they were not entitled to their traditional statutory immunity. Even though the lower courts erred in thinking the city was entitled to it, a higher court interpreted the code correctly to show that the transit authority had exposure to plaintiff's suit due to the constructive notice of the defect. At the same time, public entities which are appraised of a dangerous condition are allotted time to remedy the defect or, if the public entity is unable to remedy the situation, to place a proper notice in and around the dangerous area to prevent future injuries. In cases in which the entity was given constructive notice of the defect-perhaps because of previous injuries or an inherent design flaw of the location which gave rise to a dangerous condition-the entity is deemed to have been put on notice by virtue of the fact that the property is defective and needs to be fixed. In sum, the public entity must have either "negligently or wrongly created the dangerous" or "had notice of it for a long enough time to protect against the danger" in order for a claim of a dangerous condition to prevail.

In some cases, the courts have rejected the idea that a public entity owes a duty of care to a plaintiff when an injury occurs on public property. In Zelig, et al. v. County of Los Angeles, et al., for example, the court rejected plaintiffs' argument that the county, sheriffs, or even the courthouse were negligent when a woman was fatally shot on her way to court. In this case, the surviving minor children of the slain mother claimed causes of action against public entities alleging liability because such entities failed to prevent the murder from occurring. In this matter, the court found that "although the government may assume responsibility for providing adequate police protection against third-party violence, this does not create a legal duty that normally will give rise to civil liability." While the children may have had a case against the shooter, California Government Code section 845 barred them from pursuing a claim of negligence or wrongful death against public entity defendants in the case. The plaintiffs attempted to claim that a dangerous condition existed in the way that the courthouse and/or county sheriffs conducted security in the building, but this legal theory was ultimately rejected by the court. Here, since the public entity could not have said to be put on notice about a defective condition-since the property itself did not cause or create the conditions in which the mother was shot-it would be difficult to prove that this case involved a truly dangerous condition of public property. Had attacks at the courthouse been such a regular occurrence that authorities knew, or should have known, that there was a good chance that people would be assaulted and even killed there, however, then the plaintiffs might have been able to make a case pursuant to Government Code section 835. Absent this constructive notice, however, the plaintiffs could not convince the court that a courthouse in which a shooting occurred had a dangerous condition in it.

In another complicated case involving an allegation of excessive force in Union City, the court returned a mixed finding regarding liability. In this suit, police responded to a residence because a woman, who was alleged to be on drugs, was physically threatening those around her. When police arrived on the scene, one particular officer seemed to escalate the situation by approaching the woman in an attempt to apprehend her. The woman was shot to death by the officer who later claimed that he feared she was going to attack him or one of the other people in the residence. When the slain woman's children sued the officer, the police department, and the city generally, the court eventually found that "Woodward [the shooter] owed a duty of care not to use deadly force in an unreasonable manner, the breach of which in this case is supported by substantial evidence. Accordingly, Union City is also liable for that portion of the judgment attributable to Woodward's negligence under undisputed principles of vicarious liability" (Munoz v. City of Union City). At the same time, however, the court denied that Union City itself had "direct negligence" in the case, and since Woodward was only apportioned some fifty percent of liability, the city ultimately was only similarly liable. Since the city's liability was cut in half, the damages it was forced to pay to the victims of the shooting were likewise cut in half. Had the city also been deemed to be directly negligent-perhaps because it trained its officers to act the way Woodward did-then there might have been a theory of liability articulated against the city generally and directly as well as vicariously through the shooter. Thus, even though the court agreed that a public entity owed plaintiffs a duty of care to some extent, however "vicariously" through Woodward, the public entity's immunity also prevented it from being more fully exposed to plaintiff's damages. According to the court, the direct negligence theory "advanced by respondents was not grounded on a violation of a statutory duty by the public entity." Since Woodward's shooting was not the result of the city violating a duty defined by a statute, there was no way it could have direct negligence in a case in which one of its officers used unreasonable force. Since there was no evidence to support a theory that the city negligently hired or trained Woodward, or officers generally, the plaintiff could not prove that the city itself was directly negligent.

A final case involves a public entity denying a person the right to enter fairgrounds wearing a "Hell's Angels" vest. In this matter, the court found that when the defendant public entities "ejected" plaintiff "from the grounds, they "deprived him of a liberty interest in his personal dress and appearance." This was deemed unconstitutional because it infringed upon the plaintiff's freedom of speech, and the plaintiff was therefore entitled to damages and attorney fees (Gatto v. County of Sonoma). Claims of being denied constitutional rights, such as those protecting free expression, can be tricky, but the Gatto case highlights how public entities can err when they deny someone a basic liberty in pursuit of some poorly defined dress code. In one case in which I obtained a favorable settlement for my client, a Native American man had been denied his right of religious expression while incarcerated because of a prison grooming code which demanded that prisoners have short hair. Even though my client expressed an inability to comply with the code on the basis of his beliefs and religion, he was routinely punished for violating the code and denied access to certain benefits prisoners may have or work towards such as job training, early release programs, and the ability to obtain education credits. Beyond this, he was routinely placed in the section of the prison reserved for inmates who are misbehaving. This section is intentionally kept hotter and more miserable than the rest of the facility to punish those who aren't complying with the prison's rules. After pursuing defendant public entities for damages, a settlement was eventually reached wherein my client received money for the constitutional violation of his freedom of religion.

Because of the danger of losing a case if the statue isn't followed and the need to ensure that everything is timely filed, it is crucial that you contact an attorney to handle a public entity claim if you feel you may have a case against one because you were injured on public property, had your constitutional rights violated, or were injured because of the actions of a public employee acting in his or her official capacity. Trying to handle a public entity claim without an experienced attorney can be fatal to what may otherwise be a strong case.

Why Choose the Law Offices of Joseph C. Rosenblit?

What distinguishes my work from many other attorneys are two characteristics. First, I have made it my mission to listen carefully to my clients, respond quickly to their needs and to be there for them in a way that holds their interests above all others, including myself. Any situation that arises I will be available to respond quickly and effectively. I pride myself on caring enough about my clients, day or night, weekday or weekend, so that if they call I will do all in my power to help. That is my pledge to you.

Secondly, I have always brought a creative approach to litigation. A seemingly simple motor vehicle accident may, when one investigates deeper, lend itself to an allegation of an inherently dangerous roadside condition in the way the area was designed or even maintained. Unmarked dangerous curves or views obstructed by foliage are examples. If the injured party happens to be a senior citizen there may be a basis for alleging elder abuse violations. As an attorney with 25 years of experience in personal injury law, I will look at all possibilities when I evaluate, investigate and ultimately litigate your case.

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